Liberty University Law Review
Volume 5 | Issue 1
Article 5
2015
How the Constitution Draws A "Line in the Sand"
for the Extent of Federal Control Over NonNavigable Waterways
Jason J. Heinen
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Recommended Citation
Heinen, Jason J. (2015) "How the Constitution Draws A "Line in the Sand" for the Extent of Federal Control Over Non-Navigable
Waterways," Liberty University Law Review: Vol. 5: Iss. 1, Article 5.
Available at: http://digitalcommons.liberty.edu/lu_law_review/vol5/iss1/5
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NOTE
HOW THE CONSTITUTION DRAWS A ““LINE IN THE
SAND”” FOR THE EXTENT OF FEDERAL CONTROL
OVER NON-NAVIGABLE WATERWAYS
Jason J. Heinen††
I. INTRODUCTION
Congressional power over navigation predates the Constitution itself.1
With the passage of the Northwest Ordinance in 1787, Congress stipulated
that the waterways between the St. Lawrence and Mississippi Rivers shall
always ““be common highways and forever free””2 for everyone in the Union.
This command by Congress was not an effort to establish a large regulatory
scheme over the nation’’s waterways. Rather, it was to ensure that when the
land in the northwest was used to establish new states, the waterways
running through those states would remain open for travel and commerce.3
However, the scope of congressional power over navigation is becoming an
increasing source of controversy as the federal government becomes more
involved in environmental regulation, specifically in the areas of water
purity, runoff, and welfare of tributary wetlands.4
†† Symposium Editor, LIBERTY UNIVERSITY LAW REVIEW, Volume 5; J.D. candidate
Liberty University School of Law, 2011; B.A. in History and Political Science, 2008,
University of Wisconsin. A special thank you to Dean Jeffrey Tuomala at Liberty University
School of Law for his instruction and guidance. Not only is my understanding of the
Commerce Clause clearer than ever, but so too my appreciation for Justice Marshall’’s
interpretation of it. The author is available at [email protected].
1. Prior to 1789, the Continental Congress exercised this power. This Congress was a
part of a separate government from the Congress that later replaced it. After the new
government was established, the first Congress incorporated the Northwest Ordinance, thus
making it binding law on the states. The Northwest Ordinance is considered one of the
United States’’ founding documents. Its adoption by Congress in 1789 shows the desire the
founders had in maintaining open navigation between the states, rather than any regulatory
or national governance over these waterways. Northwest Ordinance, 1 Stat. 50 (1789).
2. Id. at art. IV.
3. 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 11
(Melville M. Bigelow ed., William S. Hein & Co., Inc. 5th ed. 1994) (1891) (citing THE
FEDERALIST NO. 42 (James Madison)).
4. ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE &
POLICY 599 (6th ed. 2009); JOHN W. JOHNSON, UNITED STATES WATER LAW: AN
INTRODUCTION 4 (2009).
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Water moves in a vast ecological cycle that affects not only most of the
environment, but also many areas of human activity.5 Without limitations,
federal power could theoretically extend over this whole cycle and all
human activities that are affected by it. By its very nature, water and its
interaction with land is very fluid, with little to no difference at times
between one waterway and another, or one area of the ecological cycle and
another.6 With this in mind, the question of to what extent the federal
government has power over rivers and navigation becomes an important
one to address.7 This is particularly the case in environmental law, where
there is a need to know jurisdictional boundaries between governments,
such as which government has the prerogative to act when an
environmental problem arises. Knowing these boundaries allows
governments to enforce effectively the laws needed to stop pollution before
it happens.8 Without clarity in jurisdictional boundaries, some regulatory
areas may be overlooked, people will have difficulty holding their
governments accountable, and certain environments may even go
unprotected.
Rapanos v. United States is the Supreme Court’’s most recent attempt to
determine the extent of the federal government’’s power over rivers and
navigation.9 However, the Court created more unanswered questions than
answers. As a result, the environmental law community continues to ask
which waterways are within the federal government’’s power to regulate.10
The problem with this is that the environmental law community is asking
the wrong question. The federal government has never been restricted by
geography, but rather by powers.11 Thus, the question should be: What
powers can the federal government constitutionally exercise over
5. JOHNSON, supra note 4, at 441 fig.5.
6. BRUCE FLUSHMAN, WATER BOUNDARIES: DEMYSTIFYING LAND BOUNDARIES
ADJACENT TO TIDAL OR NAVIGABLE WATERS xvii––xxv (2002) (discussing the complexity of
determining boundaries between land and water).
7. JOHNSON, supra note 4, at 2 (““Federal authority to regulate is often based on
navigability under the Commerce Clause. The definition of navigable waters is extremely
important in determining if federal regulation is appropriate under the Commerce Clause.””).
8. Joseph L. Sax, Preface to CREATIVE COMMON LAW STRATEGIES FOR PROTECTING
THE ENVIRONMENT xvii (Clifford Rechtschaffen & Denise Antolini eds., 2007).
9. Rapanos v. United States, 547 U.S. 715, 730 (2006) (Scalia, J., plurality).
10. Bren Mollerup, Rapanos v. United States: ““Waters of the United States”” Under the
Clean Water Act, 12 DRAKE J. AGRIC. L. 521, 521 (2007).
11. U.S. CONST. art. 1, § 8; THE FEDERALIST NO. 45, at 324-29 (James Madison)
(Benjamin F. Wright ed., 1961) (““The powers delegated by the proposed Constitution to the
federal government are few and defined.””).
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waterways? If geography remains a legal factor in determining the extent of
federal power, then certain geography, due to its nature, is outside any plain
application of the federal government’’s powers. For example, if the federal
government had only the power to regulate the harvesting of timber, there
would be no reason for any federal regulation over treeless landscapes.
Unless, of course, the treeless landscapes were involved in the timber
harvesting process, in which case the government would only have power
to enact a regulation relating to that process.
This Note will address how continuing to ignore the constitutional issues
in the federal regulation of waterways, such as the purpose of the
Commerce Clause and the real extent of its application, will only result in
arbitrary judicial determinations based on broad geographic distinctions. As
a case in point, Rapanos shows both the problems that arise from decisions
based on geographic distinctions and the solution provided for those
problems by the constitutional issues in the case. To fully appreciate the
arbitrariness of the Rapanos decision, it is necessary to understand the
historical development of how the Commerce Clause has been interpreted
and how its interpretation has led to the expansion of federal water
regulation. Part II will discuss this development and expansion. Part III will
both explain the facts and analysis involved in Rapanos and examine the
constitutional matters the Court failed to analyze in the case, and
specifically, the problems that result when these constitutional matters are
ignored. Part IV will propose a simple solution to resolving these problems:
limiting federal regulation of navigable waterways to the power and intent
enumerated in the Commerce Clause.
II. BACKGROUND
Environmental regulation of waterways is a fairly recent development in
federal law.12 Prior to the passage of amendments to the Federal Water
Pollution Control Act in 1972, the federal government did not directly
regulate water pollution or quality for the purpose of protecting the
wellbeing of the environment.13 Despite the radical change in the amount of
federal oversight that eventually took place, this development occurred
gradually. The 1972 amendments resulted mostly because of the popular
12. ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND
POLICY 644 (6th ed. 2009).
13. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, §
101(a), 86 Stat. 816, 816 (1972); ROBIN CRAIG, THE CLEAN WATER ACT AND THE
CONSTITUTION: LEGAL STRUCTURE AND THE PUBLIC’’S RIGHT TO A CLEAN AND HEALTHY
ENVIRONMENT 7 (2d ed. 2009).
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awakening over environmental issues in the 1960s and 1970s.14 However,
this radical change in federal law could not have happened without a broad
judicial interpretation of the Commerce Clause.15 The legal history behind
the Commerce Clause, then, is also a history of the development of federal
power over the environmental regulation of waterways. By the time
Congress passed the 1972 amendments, later named the Clean Water Act
(CWA), the courts had vastly expanded the scope of the Commerce Clause
from its original understanding reflected in Gibbons v. Ogden to the point
where the Constitution was interpreted to allow for direct regulation of
water pollution for the purpose of protecting the environment.16 To fully
appreciate this dramatic shift, it is essential to understand how the Court
viewed the enumerated powers of the Commerce Clause with regard to
navigation.
A. The Commerce Clause Power As It Applies to Navigation
1. General Purpose and Application of the Commerce Clause
The members of the Constitutional Convention in Philadelphia inserted
the Commerce Clause in the Constitution as a means of preventing many of
the trade and commerce problems that plagued the Confederacy, such as
interstate tariffs and tolls.17 The Convention acknowledged how similar
unions functioning under weaker federal systems, such as the Swiss
Confederation and the German Empire, required a common market without
14. CRAIG, supra note 13, at 1.
15. 4 ROBERT E. BECK, WATER AND WATER RIGHTS § 35.01 (Matthew Bender & Co.
2003) (1967); see also CRAIG, supra note 13, at 22 (““Congress’’ reduction of the state role in
water quality regulation was probably spurred, at least in part, by the Court’’s increasing
recognition of Congress’’ ability, under the Constitution’’s Interstate Commerce Clause, to
regulate in-state activities.””).
16. The Court in Ashland found the need for regulation based more on health and
welfare interests, which tend to be police powers traditionally held by the state, but in
Gibbons the court acknowledges the need for a direct link between regulation and
commerce. Compare Gibbons v. Ogden, 22 U.S. 1, 189 (1824) with United States v.
Ashland Oil & Transp. Co., 504 F.2d 1317, 1325 (6th Cir. 1974). See also United States v.
Gerke Excavating, 412 F.3d 804, 807 (7th Cir. 2005) (““Congress’’s power to regulate
commerce is not limited to removing obstructions; otherwise it could not forbid trafficking
in controlled substances, a program designed to reduce a form of commerce. Congress may
forbid the pollution of navigable waters even if the pollution has no effect on navigability . .
. .””).
17. Robert H. Bork & Daniel E. Troy, Locating the Boundaries: The Scope of
Congress’’s Power to Regulate Commerce, 25 HARV. J.L. & PUB. POL’’Y 849, 855-59 (2002);
THE FEDERALIST NO. 11, at 136-42 (Alexander Hamilton) (Benjamin F. Wright ed., 1961).
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trade restrictions.18 Prior to ratification of the Constitution, James Madison
acknowledged in THE FEDERALIST NO. 42:
The defect of power in the existing Confederacy to regulate
the commerce between its several members, is in the number of
those which have been clearly pointed out by experience . . . . A
very material object of this power was the relief of the States
which import and export through other States, from the improper
contributions levied on them by the latter.19
This ““defect”” was evident to many of the constitutional drafters. In fact, one
member of the Convention in Philadelphia stated that he believed it was ““a
matter of general Consent””20 that ““because the States individually are
incompetent . . . the United-States should also regulate the Commerce of
the United-States foreign [and] internal . . . .””21 The drafters and proponents
of the Commerce Clause saw the purpose of the Commerce Clause
exclusively as the protection of a common market.
Many of the individuals who aided in drafting or ratifying the Commerce
Clause were later elected to Congress, which makes the First Congress’’s
actions under the enumerated power an important testimony to how the
Clause should be understood.22 Of significant note, the First Congress did
not pass legislation for the building of dams or bridges.23 States were
considered the primary decision makers on whether to conduct
improvements, such as cleaning harbors or rivers, building lighthouses and
piers, or constructing other navigational infrastructure. The First Congress
based the need for its authorization of such projects and improvement not
on the Commerce Clause, but rather on Section 10 of Article 1, which
prohibits states from using imposts or duties.24 The application of the
Commerce Clause during the early years of the United States was strictly
18. THE FEDERALIST NO. 42, at 306 (James Madison) (Benjamin F. Wright ed., 1961).
19. Id. at 305.
20. SUPPLEMENT TO MAX FARRAND’’S THE RECORDS OF THE FEDERAL CONVENTION OF
1787 102 (James H. Hutson ed., 1987).
21. Id.
22. DAVID WALTER BROWN, THE COMMERCIAL POWER OF CONGRESS: CONSIDERED IN
THE LIGHT OF ITS ORIGIN: THE ORIGIN, DEVELOPMENT, AND CONTEMPORARY INTERPRETATION
OF THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION, FROM THE NEW JERSEY
REPRESENTATIONS, OF 1778, TO THE EMBARGO LAWS OF JEFFERSON’’S SECOND
ADMINISTRATION, IN 1809, at 153-54 (1910).
23. E. PARMALEE PRENTICE & JOHN G. EGAN, THE COMMERCE CLAUSE OF THE FEDERAL
CONSTITUTION 108 (1898).
24. Id. at 107-09.
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for the prevention of local prohibitions and obstructions to commerce.25
Even matters of navigational infrastructure were not wholly within the
realm of federal control.26 The application of the Commerce Clause has
undergone extensive changes since these early foundations. However,
before discussing these changes, a brief introduction on the application of
this congressional power, specifically to navigation, is necessary.
2. Congressional Power over Navigation
The power of Congress to govern navigation has been an established
principle since the earliest years of the Republic.27 Although unlike the
modern scope of navigation regulation, the early Court understood this
power to be directly connected to commerce.28 Congressional power to
regulate waterways, or anything by way of the Commerce Clause, extended
only so long as ““[t]he subject to be regulated [was] commerce.””29
Throughout the nineteenth century, this common-sense legal principle
remained a doctrine espoused by the Court.30 The idea of classifying
different waterways as navigable or non-navigable was not seen as a
25. See, e.g., Willson v. The Black Bird Creek Marsh Co., 27 U.S. 245, 250 (1829);
Gibbons v. Ogden, 22 U.S. 1, 189-96 (1824).
26. This assertion does not agree with the Court’’s opinion in Cooley v. Bd. of Wardens
of the Port of Philidelphia. In fact, this understanding of federal and state jurisdiction did not
contradict Justice Marshall’’s opinion in Gibbons v. Ogden, in which he acknowledged the
states having an interest and legitimate objective in doing inspections or having taxes on
commercial goods. Compare Gibbons, 22 U.S. 1, 200-05 (1824), with Cooley, 53 U.S. 299
(1851).
27. Northwest Ordinance, art. IV, 1 Stat. 50 (1789); Gibbons, 22 U.S. at 190; STORY,
supra note 3, at 6.
28. Gibbons, 22 U.S. at 197 (““The power of Congress, then, comprehends navigation,
within the limits of every State in the Union; so far as that navigation may be, in any
manner, connected with ‘‘commerce with foreign nations, or among the several States, or
with the Indian tribes.’’””).
29. Id. at 189.
30. Rhea v. Newport N. & M.V.R. Co., 50 F. 16, 21 (C.C.D. Ky. 1892).
The commerce clause of the constitution includes control of all navigable
waters of the United States, so far as may be necessary to insure their free
navigation. By navigable waters are meant such as are navigable in fact, and
which by themselves, or by their connections with other waters, form a
continuous channel with foreign countries or among the states.
Id. (emphasis added) (recognizing that the Commerce Clause was intended to maintain free
trade and commerce, and that the subject of the regulation must be Commerce); see also
Miller v. New York, 109 U.S. 385, 395 (1883); Escanaba & Lake Michigan Transp. Co. v.
Chicago, 107 U.S. 678, 683 (1883).
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necessity through much of the nineteenth century because, regardless of
geography, federal power extended only as far as regulation of commerce
extended. It was not until 1870 that the Court began to classify waterways
specifically, and even then, the purpose of such classifications was for
determining admiralty jurisdiction, not regulating the use of waterways.31 In
fact, when the Court ruled that navigability extended beyond its common
law definition of being subject to ““the ebb and flow of the tide,””32 it was the
use of water for commerce between the states and foreign nations that
became the new determining factor for which waterways were navigablein-fact.33 In other words, navigable-in-fact waterways are those
watercourses that are used in interstate commerce.
Even when the Court acknowledged congressional power over
navigable-in-fact waterways, it never acknowledged unlimited power to
regulate those waters. During these early years, the Court consistently held
that federal power extended only to ensuring free navigation among the
states and foreign nations.34 This was because the Court understood the
original intent behind the Commerce Clause: to maintain a common
economic market among the several states.35 Thus, until more recently, the
Court never considered the federal government to have complete power
over navigable waterways simply because they were navigable.36 States
retained ownership——as the sovereign in public trust——of the navigable
waterways.37 They were still free to exercise their police powers over those
waters.38 The states also maintained complete ownership and regulatory
31. The Daniel Ball, 77 U.S. 557, 563 (1871).
32. Id.
33. Id.
34. Gibbons, 22 U.S. at 231.
35. Cardwell v. Am. River Bridge Co., 113 U.S. 205, 210 (1885).
36. Chicago & N.W.R. Co. v. Fuller, 84 U.S. 560, 569 (1873) (holding that states still
retain police powers that may interfere or intertwine with commerce, but this is not
““obnoxious”” to the Commerce Clause).
37. United States v. Cress, 243 U.S. 316, 320 (1917).
38. Gibbons, 22 U.S. at 203; see also Willson v. The Black Bird Creek Marsh Co., 27
U.S. 245 (1829) (holding that a state-built dam that restricted free navigation for health and
welfare reasons did not violate the Commerce Clause when Congress had been silent).
Under CWA, Congress is never silent with navigable and non-navigable waterways. As a
result, states are no longer free to act as they may have at the time of the Black Bird Creek
decision. Instead, states and individuals must meet EPA or Army Corps of Engineers
standards and possibly acquire the proper permit beforehand.
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control over the natural resources in the navigable waterways.39 The Court
understood that the Commerce Clause gave Congress the power to veto
these state powers only when they restricted free navigation among the
several states.40
B. The Necessary Commerce Clause Expansion
Shortly after the turn of the twentieth century, the Court’’s interpretation
of the federal government’’s power under the Commerce Clause began to
change immensely. Perhaps due to strong precedent on navigation, all these
changes came to fruition in cases unrelated to navigable waterways. The
changes wrought by the Court’’s interpretation resulted in expansive federal
power that continues even to this day.
The first major change came in 1903, when the Court, for the first time,
legitimized congressional power to restrict commerce in Champion v.
Ames.41 Prior to this decision, the Court had consistently acknowledged that
the Commerce Clause was intended only to prevent obstructions to free
trade among the several states.42 The Champion decision essentially paved
the way for the Court to abandon any acknowledgment of the Clause’’s
intended purpose. Eventually, this abandonment of intent led the Court to
abandon the subject of the Clause that Justice Marshall had acknowledged
so many years before.43
In 1942, the Court decided the infamous case of Wickard v. Filburn. In
Wickard, the Court extended federal power beyond the regulation of
commerce among the states to include regulation of agricultural
production.44 What made the Wickard decision infamous was that the
regulation was being applied to a farmer using his wheat for family
subsistence; the grain never even crossed state lines.45 After Wickard,
Congress had the power to legislate on intrastate matters so long as there
39. Manchester v. Massachusetts, 139 U.S. 240, 259 (1891); State v. Sawyer, 94 A. 886,
887 (Me. 1915).
40. Gibbons, 22 U.S. at 210.
41. Champion v. Ames, 188 U.S. 321 (1903).
42. Robert H. Bork & Daniel E. Troy, Locating the Boundaries: The Scope of
Congress’’s Power to Regulate Commerce, 25 HARV. J.L. & PUB. POL’’Y 849, 880 (2002).
43. See Wickard v. Filburn, 317 U.S. 111, 128 (1942) (extending the Commerce Clause
to the intrastate activity of growing wheat on one’’s own farm and for one’’s consumption
because it would have an effect on interstate commerce if taken in the aggregate with others
acting similarly).
44. Id.
45. Id. at 114.
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was a ““substantial economic effect on interstate commerce,””46 even if the
matters were not in the stream of commerce.47 This expansion included, but
was not limited to, the power to set wage restrictions,48 prohibit
production,49 and exercise police powers over anything that crossed state
borders in commerce.50 The Court’’s abandonment of the original intent and
subject matter of the Commerce Clause opened the door for vast expansion
of federal power. Navigable waterways were not exempt from this
expansion, and federal power over the waterways would eventually increase
like most other areas of Commerce Clause regulation.
C. Two Expansions in Federal Power over Waterways
The expanding scope of the Commerce Clause opened the door for two
general expansions in the federal government’’s power to regulate navigable
waterways. The first expansion recognized congressional power to regulate
any effects on water, regardless of whether or not they impeded one state’’s
right to a common market between all the states. The second expansion
acknowledged congressional power to regulate directly any environments
beyond those waterways that are navigable-in-fact. While both of these
expansions were the result of attenuating the connection between the
objects of the various regulations and the act of navigation, an analysis of
each expansion shows how they have perpetuated each other and have led
to confusion by way of semantics.
1. First Legal Expansion——Beyond the Regulation of Commerce
Beginning in the 1960s, the public became increasingly aware of the
harm being done to the environment.51 The influence of this movement was
widespread and would eventually propel a vast amount of federal
legislation, such as the Clean Water Act.52 Like many other movements
involving politics, those within the environmental movement did not ignore
the judiciary as a potential avenue for change. Thus, the courts began to
search for clever application of old laws to further new means. The Rivers
46. Id. at 125.
47. Id. at 118.
48. Nat’’l Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937).
49. Gonzales v. Raich, 545 U.S. 1 (2005).
50. United States v. Taylor, 226 F.3d 593, 598 (7th Cir. 2000).
51. Stacy J. Silveira, The American Environmental Movement: Surviving Through
Diversity, 28 B.C. ENVTL. AFF. L. REV. 497, 503 (2001).
52. CRAIG, supra note 13, at 169.
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and Harbors Act of 1899 (RHA)53 became one such law, where the courts
tried to manipulate an existing law for new means. Most of the RHA listed
various navigation improvements, but one clause essentially gave authority
to the Secretary of War, who oversaw the Army Corps of Engineer at that
time, to issue permits for waste disposal of any waste larger than runoff.
The congressional purpose for this clause is seen in how the Act only
regulated refuse disposed in a manner ““whereby navigation shall or may be
impeded or obstructed.””54 This limited provision is exactly how the Act had
been applied up until the 1960s. Even though the Court’’s perspective
toward the federal role in navigable waters was shifting, in 1960 the
Supreme Court was still acknowledging this obstruction requirement.55
Only six years later, the Supreme Court dropped the legal requirement
for prohibiting obstruction, possibly for reasons of political expediency in
protecting the environment. In United States v. Standard Oil Co., the Court
defined the term ““refuse”” in the RHA to include aviation gasoline.56 The
Court acknowledged that ““[t]his case comes to us at a time in the Nation’’s
history when there is greater concern than ever over pollution——one of the
main threats to our free-flowing rivers and to our lakes as well.””57 With this
case, the Court actively reached beyond the limited purpose of the
Commerce Clause. The Court essentially gave its approval of federal
authority to regulate waterways for purposes other than navigation. As a
result, the federal government could regulate the quality and health of the
water, regardless of its effect on navigation. The Court essentially
overlooked the purpose of the RHA and instead acknowledged a
congressional purpose to prevent any pollution simply for the
environmental health of navigable waterways.58
In 1972, Congress codified the ruling in Standard Oil by enacting the
CWA. The Act’’s purpose was ““to restore and maintain the chemical,
physical, and biological integrity of the Nation’’s waters.””59 While this
purpose was clear, the Act never substantiated it with either the intent or
subject of the Commerce Clause. Following the expressly stated purpose,
53. Rivers and Habors Appropriation Act of 1899, Pub. L. No. 55-425, § 13, 30 Stat.
1121, 1152 (1899).
54. Id.
55. United States v. Republic Steel Corp., 362 U.S. 482 (1960).
56. United States v. Standard Oil Co., 384 U.S. 224 (1966).
57. Id. at 225.
58. Id. at 226.
59. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, §
101(a), 86 Stat. 816, 816 (1972).
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the CWA alluded to a congressional policy to ““recognize, preserve, and
protect the primary responsibilities and rights of States to prevent, reduce,
and eliminate pollution . . . .””60 Despite this affirmation, the Act was the
first of its kind to implement direct federal regulation and enforcement
procedures on property owners. The Act authorized the Environmental
Protection Agency (EPA) to set national standards with which all states and
citizens had to comply.61 States could regulate their own pollution when
their enforcement standards and procedures complied with federal
standards.
A state’’s failure to adequately enforce these regulations or to grant
permits that the EPA or Army Corps of Engineers required would allow
federal authorities to retake control over enforcement. While states retained
the ability to set water quality standards in 1972, later legislation gave the
EPA authority to disapprove and change the standards in accordance with
standards set forth in 1972.62 The CWA also provided in numerous
instances for federal preemption of state law unless the state law has more
stringent standards than what federal law would require.63 Empowered by
the Commerce Clause, the CWA suddenly gave the federal government
immense authority to regulate the nation’’s waterways in more areas than
navigation. Because of the second legal expansion of the Commerce
Clause, the CWA was not even limited to navigable waterways.
2. Second Legal Expansion——Beyond Navigation-in-Fact
The expanded understanding of the Commerce Clause also opened up
non-navigable waterways to the scrutiny of federal regulation. The
definition of navigable or non-navigable waterways from the start was less
about geography and environment and more about use. Legislation dealt
mostly with regulating actual navigation, rather than the environment that
potentially had the capacity for navigation.64 As Manifest Destiny gripped
the country, legislation regarding dams, bridges, canals, and dredging was
practically inevitable. As these types of regulations and legislation
increased, the Court established a framework for how the navigability of a
waterway could be determined factually. Culminating in the 1870 Supreme
60. Id. § 101(b), 86 Stat. 816.
61. Id. § 301, 86 Stat. 816, 845.
62. 33 U.S.C. § 1313(a)(2)––(3), (c)(2)(A) (2006).
63. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, §
501, 86 Stat. 816, 885 (1972). Without a provision that allows for the stricter provision to
rule, the Supremacy Clause would require federal law to preempt state law.
64. 4 BECK, supra note 15, at 34-2.
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Court case referred to as The Daniel Ball, the Court held that federal
admiralty jurisdiction only extended to waters that were navigable-in-fact.65
As stated earlier, this determination of a waterway being navigable-in-fact
was inextricably linked to how the water could be used for commerce
between the states.66
In United States v. Appalachian Electric Power Co.,67 the Supreme Court
applied The Daniel Ball to federal jurisdiction generally, thus creating
somewhat of an artificial legal barrier between regulating actual navigation
and deciding that a waterway is navigable-in-fact. This barrier led to the
trend of federal regulations being based on the geographic distinction
between navigable and non-navigable waterways. Congress no longer
determined navigability on a case-by-case basis, referencing actual
commercial activity. Instead, it was a theoretical determination based on
geography and potential for navigation in the future. Waterways were now
subject to federal jurisdiction, not for their actual use in commerce, but
based purely on the geographic features they had.68
Part of the congressional intent in passing the CWA was to extend
federal regulation of water quality as far as the Commerce Clause would
permit.69 This included going beyond waterways that were navigable-infact. Since the RHA already involved non-navigable waterways, it was not
much of a logical leap for Congress to extend regulation beyond navigable
waterways in the CWA by defining the regulated area to include those same
non-navigable waters of the United States. In the CWA, Congress
authorized the EPA to regulate all waters within the nation’’s water basins,
defined as ““rivers and their tributaries, streams, coastal waters, sounds,
estuaries, bays, lakes, and portions thereof, as well as the lands drained
thereby.””70 The EPA set down regulations that specifically defined what
waters this included: ““intrastate lakes, rivers, streams (including
intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie
potholes, wet meadows, playa lakes, or natural ponds, the use, degradation,
or destruction of which could affect interstate or foreign commerce . . . .””71
Thus, the CWA extended to as many waterways as possible, regardless of
65. The Daniel Ball, 77 U.S. 557, 563 (1870).
66. See supra Part II.A.2.
67. United States v. Appalachian Elec. Power Co., 311 U.S. 377 (1940).
68. Id. at 412.
69. United States v. Riverside Bayview Homes, 474 U.S. 121, 133 (1985).
70. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500,
§102(c)(3), 86 Stat. 816 (1972).
71. 33 C.F.R. § 328.3(a)(3) (2010).
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their navigability. The difference from the RHA was that the CWA
provided for direct regulation of those non-navigable waterways, rather
than incidental regulation based on commercial interference in navigable
waterways.
D. Commerce Clause Jurisprudence After CWA
Judicial developments in the interpretation of the Commerce Clause did
not cease in 1972 with the passage of the CWA. In fact, there have been
significant judicial developments in the interpretation of the Commerce
Clause since the passage of the CWA. Prior to these developments, courts
often dealt with issues involving the interpretation and application of the
Act itself. Specifically, courts faced the issue of identifying the intended
reach of the CWA.
1. Interpretation of the CWA after its passage
In the years immediately following the passage of the CWA, the
Supreme Court never directly affirmed the constitutionality of the Act.72
Instead, courts only interpreted provisions of the Act itself. These cases
held that Congress intended the CWA to extend to the limits of the
Commerce Clause.73 This is especially significant because in Rapanos the
plurality held the regulation at issue in that case extended beyond the
CWA.74 Yet, the Court never addressed the constitutional concerns in
Rapanos associated with a regulation extending beyond the Commerce
Clause, which the Court should have if the agencies were enforcing
unconstitutional regulations.75
When the Supreme Court finally granted certiorari for a CWA issue, it
unequivocally reaffirmed the expansion of regulation beyond waterways
that were navigable-in-fact.76 For the Court, arriving at this legal conclusion
was not difficult. The Court affirmed the ability of Congress to regulate
non-navigable waterways in the roughly seventy-five year old RHA. The
Supreme Court addressed the CWA issue in United States v. Riverside
72. While the Supreme Court never directly affirmed the constitutionality of the CWA,
several courts addressed the issue shortly after its passage (yet all prior to Lopez). E.g.,
United States v. Byrd, 609 F.2d 1204 (7th Cir. 1979); United States v. Ashland Oil &
Transp. Co., 504 F.2d 1317 (6th Cir. 1974).
73. CRAIG, supra note 13, at 119 n.70.
74. Rapanos v. United States, 547 U.S. 715, 739 (2006) (Scalia, J., plurality).
75. Id.
76. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
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Bayview Homes, Inc.77 There the Court held that the CWA included
wetlands that were adjacent to navigable waterways and their tributaries
within federal jurisdiction.78 Similar to the Court’’s analysis in Rapanos, the
Court never considered the constitutionality of the CWA, but rather
considered the regulations in light of the CWA. The Court reasoned that the
wetlands at issue were within federal jurisdiction, not because they were
within a rational exercise of the Commerce Clause power but because
Congress intended for the phrase ““waters of the United States”” in the CWA
to be broadly defined.79
2. Uncertainty After United States v. Lopez
The Supreme Court case of United States v. Lopez80 was a stark
departure from the trend of Commerce Clause interpretation that had
gripped the Court for roughly the past century.81 The decision caused the
economic nature of things affecting interstate commerce again to be a
relevant and required element. In Lopez, the Court held that the Gun-Free
School Zones Act of 1990 was unconstitutional because it exceeded the
scope of the Commerce Clause.82 This Act essentially prohibited the
possession of guns in a school zone with no regard for how this activity
related to interstate commerce in a school zone.83 The Court was unwilling
to allow the Commerce Clause to extend so far into state and local control.
It reasoned that to do so it would have to ““pile inference upon inference in a
manner that would bid fair to convert congressional authority under the
Commerce Clause to a general police power of the sort retained by the
States.””84 The Court understood that if the scope of the Commerce Clause
77. Id.
78. Id. at 139.
79. Id. at 133.
80. United States v. Lopez, 514 U.S. 549 (1995).
81. Compare Champion v. Ames, 188 U.S. 321 (1903) (expanding the scope of federal
power under the Commerce Clause) with 514 U.S. 549 (1995) (restricting the scope of
federal power under the Commerce Clause); see also ROBERT MELTZ, CONSTITUTIONAL
BOUNDS ON CONGRESS’’ ABILITY TO PROTECT THE ENVIRONMENT vii (2003) (““In 1995, the
Supreme Court sustained a Commerce Clause challenge to a federal law for the first time in
60 years . . . .””).
82. Lopez, 514 U.S. at 567.
83. Id. at 551.
84. Id. at 567.
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continued to expand, the enumerated powers of the Constitution would only
be a façade for limited power.85
While the Court acknowledged the need to go no further with expanding
the scope of the Commerce Clause in Lopez, it was unwilling to reverse any
of the expansions that had happened since 1903, including its 1942 holding
in Wickard.86 Regardless of Lopez’’s impact on precedent, it brought
uncertainty to the legitimacy and present extent of federal regulation of
both navigable and, especially, non-navigable waterways.87 The limitation
in Lopez substantially affects many of the circuit court decisions handed
down prior to its decision regarding the legitimacy and application of the
CWA. The Court’’s ruling in Lopez essentially requires any activity
regulated by Congress under the Commerce Clause to be economic in
nature.88 In other words, congressional regulations can only affect
commercial activities or enterprises. Many of the activities regulated and
prohibited in the CWA, however, are not economic in nature, especially
when the activity has no effect on navigation or other commercial activity.
The uncertainty of Lopez’’s impact on navigable waterways began to
disappear with the Supreme Court’’s decision in Solid Waste Agency of N.
Cook Cnty. v. Army Corps of Eng’’rs.89 In this decision, the Supreme Court
overruled the ““Migratory Bird Rule”” by finding that it was not within the
scope of the CWA.90 The Army Corps of Engineers first articulated this rule
as part of a definition for ““waters of the United States”” in the CWA. The
rule essentially allowed federal regulation of any waterways used by
migratory birds, even those that were completely isolated.91 In SWANCC,
the Court acknowledged that the ““Migratory Bird Rule”” ran into numerous
constitutional issues, especially in light of Lopez.92 However, rather than
address these constitutional issues, the Court concluded that the ““significant
nexus”” required in Riverside was not present for the ““waters”” in the CWA
to include the isolated waterways at issue.93 For the Court, this ““significant
85. Id.
86. Id. at 560.
87. See Elaine Bueschen, Do Isolated Wetlands Substantially Affect Interstate
Commerce?, 46 AM. U. L. REV. 931 (1997).
88. Lopez, 514 U.S. at 560.
89. Solid Waste Agency of N. Cook Cnty. v. Army Corps of Eng’’rs, 531 U.S. 159
(2001) [hereinafter SWANCC].
90. Id. at 167.
91. Definition of Waters of the United States, 33 C.F.R. § 328 (2010).
92. SWANCC, 531 U.S. at 173.
93. Id. at 167-68, 174.
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nexus”” meant wetlands that ““affect the water quality of adjacent lakes,
rivers, and streams”” and that ““serve significant natural biological
functions.””94 Thus, rather than face the real issue that continues to confront
it, the Court chose to arbitrarily exclude from the CWA isolated waters that
did not have a ““significant nexus”” to navigable waterways. This continued
uncertainty meant that it was only a matter of time before a new case arose
that factually fell between Riverside and SWANCC.
III. EXTENT OF FEDERAL JURISDICTION OVER NAVIGABLE WATERWAYS
Arbitrary judgments will remain arbitrary exercises of political will by
those who make them until they are either supported or revoked by political
right.95 As Chief Justice John Marshall briefly noted in the first United
States Supreme Court decision to hold a law unconstitutional, ““the
discretion of a court always means a found, legal discretion, not an
arbitrary will.””96 Any geographic distinction made by the Supreme Court
will only be an arbitrary line drawn in the sand unless there is constitutional
support for such a determination.97 Until this constitutional ““line”” is either
enforced by the Court or changed by the People, all other lines will remain
an arbitrary act of judicial will. The Court will never put to rest the issue of
how to distinguish waterways included in the CWA and those not included
until it acknowledges that the real distinction lies in which waterways the
Constitution authorizes Congress to regulate.98
When the Supreme Court granted certiorari for Rapanos v. United
States,99 many thought the decision would bring clarity to the confusion in
administrative regulation of waterways brought about by recent Commerce
94. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 134 (1985).
95. John Locke acknowledged a limitation on political will when he stated, ““The
legislative or supreme authority cannot assume to itself a power to rule by extemporary,
arbitrary decrees; but is bound to dispense justice, and to decide the rights of the subject, by
promulgated, standing laws, and known authorized judges.”” JOHN LOCKE, TWO TREATISES OF
GOVERNMENT AND A LETTER CONCERNING TOLERATION 160 (Ian Shapiro ed., Yale
University, 2003) (1690).
96. Marbury v. Madison, 5 U.S. 137, 153 (1803) (emphasis added).
97. The Court may also make a geographic distinction with statutory support, but the
statute must still fall within the constitutional power granted to Congress.
98. Idaho State Bar & Norman M. Semanko, When Land Is Water: Clean Water Act
Jurisdiction, 50 ADVOC. 23, 24 (2007) [hereinafter Semanko].
99. Rapanos v. United States, 547 U.S. 715 (2006).
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Clause and CWA interpretations.100 The expectations for clarity were not
unwarranted; the facts of the case provided the perfect opportunity for the
Court to permanently answer the question of the federal regulation’’s extent
and establish how far upstream the Commerce Clause truly reaches. The
case addressed four civil enforcement proceedings the federal government
brought in Michigan against a developer who backfilled three wetland areas
without a permit.101 The issue before the Court was whether these wetlands
fell within the scope of the CWA.102 The wetlands at issue were eleven to
twenty miles from the nearest navigable waterway and connected only by
way of ditches and culverts that stayed dry through a substantial part of the
year.103 The Court also stipulated that ““it is the discharge of ‘‘dredged or fill
material’’——which, unlike traditional water pollutants, are solids that do not
readily wash downstream——that we consider today.””104 These facts
presented the Court with a scenario where the waterways at issue had
minimal to zero ecological connection to any navigable waterways; this
required the Court to determine the precise extent of federal jurisdiction
beyond navigable waterways. This only bolstered the expectation the case
would finally lay the issue to rest.
A. A Plurality Decision That ““Muddied The Waters””105
In 2006, when the Court issued the Rapanos opinion, the expectation for
clarity was dashed to pieces. The Court handed down a plurality decision
written by Justice Scalia. He found that the CWA did not extend to
wetlands with a ““mere hydrological connection,””106 but rather included
““only relatively permanent, standing or flowing bodies of water,”” described
in ordinary parlance as ““‘‘streams,’’ ‘‘oceans,’’ ‘‘rivers,’’ ‘‘lakes,’’ and ‘‘bodies’’
100. Kevin P. Pechulis, Scope of ‘‘Waters of the United States’’ Unclear After Rapanos v.
United States, 38 ABA TRENDS 4, 4 (2006).
101. Rapanos, 547 U.S. at 719 (Scalia, J., plurality).
102. Id. at 729 (Scalia, J., plurality).
103. Id. at 720 (Scalia, J., plurality).
104. Id. at 723 (Scalia, J., plurality) (emphasis added).
105. Jared Fish, United States v. Robinson: The Case for Restoring Broad Jurisdictional
Authority under the Federal Clean Water Act in the Wake of Rapanos’’ Muddied Waters, 36
ECOLOGY L.Q. 561, 561 (2009) (““In 2006, the United States Supreme Court restricted and
muddied the legal reach of the Clean Water Act (CWA) with its holding in [United States v.
Rapanos]. Since then, both district courts and circuit courts of appeals have had a difficult
time interpreting agency jurisdictional scope under the CWA.””).
106. Rapanos, 547 U.S. at 742 (Scalia, J., plurality).
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of water ‘‘forming geographic features.’’””107 On the other hand, Justice
Kennedy’’s concurrence set down a requirement for the regulated waterways
to ““possess a ‘‘significant nexus’’ to waters that are or were navigable in fact
or that could reasonably be so made.””108 According to his dissent, Stevens
believed that the CWA extended beyond these geographic and legally
created barriers and wanted to defer to the established regulations set down
by the EPA, which had been in use for thirty years.109
Numerous critiques have taken aim at the 4-1-4 split-decision for the
confusion that it created in the government regulation of waterways.110 The
opinions have been criticized for confusing the various agencies that
enforce the legislation.111 Other critics have recognized the expansion of
federal power under the Commerce Clause and the vagueness of the CWA,
and yet they have still criticized the Rapanos decision for not deferring to
the definition adopted by the Corps.112 While many of these criticisms are
warranted due to the confusion from the opinion, most of them are directed
at how the Rapanos decision unjustly limited the CWA and the need for
broader federal power to address environmental threats.
B. Constitutional Problems at Issue in Rapanos
Similar to the many cases before it, the only issues addressed in this
complex, plurality decision were the meaning and application of the CWA
and whether the administrative regulations properly reflected that meaning
and application.113 Specifically, the Court addressed what ““waters of the
107. Id. at 732-33 (Scalia, J., plurality).
108. Id. at 759 (Kennedy, J., concurring in the judgment).
109. Id. at 807 (Stevens, J., dissenting).
110. CRAIG, supra note 13, at 131; Pechulis, supra note 100, at 5.
111. Peter Henner, Rapanos and Warren——A Tale of Two Cases: The Supreme Court Bats
.500, 12 ALB. L. ENVTL. OUTLOOK J. 52, 55 (2007) (““The decision in Rapanos will create
substantial confusion for the Corps in administering its wetlands program, and also in
issuing permits for dredging and filling wetlands under § 404 of the CWA. Of equal
importance, Rapanos will create substantial confusion for the EPA and state agencies in the
regulation of the ‘‘discharge of pollutants’’ into streams, waters, and lakes under § 402 of the
CWA.””).
112. Brian Elwood, Raponos v. United States: The Supreme Court’’s Failed Attempt to
Interpret Wetland Regulation Under the Clean Water Act, 56 CATH. U. L. REV. 1343, 1370
(2007).
113. Rapanos v. United States, 547 U.S. 715, 729 (2006); SWANCC v. Army Corps of
Eng’’rs, 531 U.S. 159, 174 (2001); United States v. Riverside Bayview Homes, Inc., 474 U.S.
121, 131 (1985).
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United States”” in the CWA was intended to mean.114 Nothing in the case
addressed issues related to the Commerce Clause, and the Supreme Court
maintained its precedent of avoiding discussion on the constitutional
grounds for the regulatory power being exercised.115 Instead, all nine
members of the Court started their analysis with the assumption that any
pollution control in the ““waters of the United States”” defined in the CWA
was completely within the intent and power enumerated in the Commerce
Clause.116 Rather than acknowledge the larger legal problems at issue, the
Court focused on whether the administrative regulations were in accord
with the CWA and interpreted the CWA with the assumption that Congress
intended it to be within the scope of the Commerce Clause.117
1. The Lopez Requirement of ““Economic Affect”” Mostly Ignored
There was, and really continues to be, significant doubt about whether
the regulations at issue in Rapanos can logically fall within a Commerce
Clause precedent that includes Lopez.118 As noted above, Lopez specifically
held that ““[w]here economic activity substantially affects interstate
commerce, legislation regulating that activity will be sustained.””119 In order
for the regulation of wetland fill at issue in Rapanos to withstand the Lopez
standard, there must be some sense in which it is ““an economic activity that
might, through repetition elsewhere, substantially affect any sort of
interstate commerce.””120 It might be argued, as was the case in United
States v. Byrd, that harming the health of non-navigable waterways could
harm the health or existence of the navigable waterways and that this would
in turn significantly impact interstate commerce, thus invoking a valid use
of the Commerce Clause power.121 However, allowing Congress to regulate
anything that could potentially threaten the health of the nation’’s navigable
114. Rapanos, 547 U.S. at 729 (Scalia, J., plurality).
115. Cf. SWANCC, 531 U.S. 159, 162 (2001) (stating the issues on appeal); United States
v. Riverside Bayview Homes, 474 U.S. 121, 123 (1985). While these cases brought up
constitutional concerns with regard to the regulations at issue, the constitutional issues were
not directly related to the power of environmental regulation.
116. Rapanos, 547 U.S. at 722 (Scalia, J., plurality).
117. Id.
118. See Pechulis, supra note 100; Bueschen, supra note 87.
119. United States v. Lopez, 514 U.S. 549, 560 (1995).
120. Id. at 567.
121. 609 F.2d 1204, 1210 (7th Cir. 1979) (““Destruction of all or most of the wetlands
around Lake Wawasee, for example, could significantly impair the attraction the lake holds
for interstate travelers by degrading the water quality of the lake, thereby indirectly affecting
the flow of interstate commerce.””).
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waterways would leave federal regulation of human activity involving or
affecting water virtually limitless. Roughly seventy percent of the earth’’s
surface is covered in water, and the cycle of water through the environment
impacts our lives on a daily basis.122 With enough inferences, Congress
could regulate everything from land use to how much water each household
can use.
Yet, wetland fill that has no impact on navigable waterways is not
economic in nature in any sense that the Court could have used that term.123
Regardless of this legal inconsistency, the Court never mentioned Lopez in
its Rapanos decision. If it had taken up the constitutional issues, the Court
could have limited federal regulation to those activities that are considered
economic in nature.
2. Plainly Adapted to the Intent and Objective Behind the
Commerce Clause
The Court could have also analyzed the administrative regulations at
issue in Rapanos with regard to whether they were plainly adapted to the
text of the Commerce Clause. In order for a statute to be plainly adapted,
the stated or possible purpose of the legislation must comport with the
intent and subject of the Commerce Clause. The constitutional support
currently cited by Congress and several inferior courts for federal power
over noncommercial matters in waterways and various wetlands not used
for commerce is Article I, section 8, where the legislature is given the
power, ““To regulate Commerce . . . among the several States . . . .””124
In Gibbons v. Ogden, Chief Justice John Marshall stated that legislation
had to be plainly adapted to the enumerated powers of the Constitution.125
122. BERNARD J. NEBEL & RICHARD T. WRIGHT, ENVIRONMENTAL SCIENCE: THE WAY
THE WORLD WORKS 239-40 (4th ed. 1993).
123. Lopez, 514 U.S. at 560. ““Economic”” is an adjective describing something that is of
or relating to the economy. ““Economy”” is defined as ““1. The management or administration
of the wealth and resources of a community (such as a city, state, or country). 2. The
sociopolitical organization of a community’’s wealth and resources. [or] 3. Restrained,
thrifty, or sparing use of resources; efficiency.”” BLACK’’S LAW DICTIONARY 553 (8th ed.
2004).
124. U.S. CONST. art. I, § 8, cl. 3 (emphasis added). Under Wickard, congressional power
could theoretically go farther than even noncommercial matters and involve noneconomic
matters if in the aggregate. While Lopez brings significant doubt to the possibility, Lopez has
yet to be applied to a navigable waterway fact scenario. E.g., United States v. Hartsell, 127
F.3d 343 (4th Cir. 1997); United States v. Byrd, 609 F.2d 1204 (7th Cir. 1979); United
States v. Holland, 373 F. Supp. 665 (M.D. Fla. 1974).
125. Gibbons v. Ogden, 22 U.S. 1, 91, 204 (1824).
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In United States v. Fisher, Justice Marshall explained the principle of being
plainly adapted in greater depth.126 He analyzed what the ““plainly
expressed”” meaning of the statute itself was:
It is undoubtedly a well established principle in the
exposition of statutes, that every part is to be considered, and the
intention of the legislature to be extracted from the whole. It is
also true, that where great inconvenience will result from a
particular construction, that construction is to be avoided, unless
the meaning of the legislature be plain; in which case it must be
obeyed.127
In applying this reasoning to a requirement for statutes to be plainly adapted
to a constitutional provision, the same principles would apply, just as
Justice Marshall applied them in McCulloch v. Maryland.128 A statute must
comprehend the objective of the constitutional provision and further that
object with plainly expressed language.
Under this analysis, it is evident that many of the federal regulations of
navigable and non-navigable waterways are not plainly adapted to the
Commerce Clause, including the CWA. As an example, the regulations in
Rapanos had the objective of preventing destruction of a wetlands area and
plainly prohibited without approval ““the discharge of dredged or fill
material into the navigable waters,””129 while defining navigable waters as
including ““[a]ll other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands, sloughs,
prairie potholes, wet meadows, playa lakes, or natural ponds.””130 The CWA
itself plainly states that ““[t]he objective of [the CWA] is to restore and
maintain the chemical, physical, and biological integrity of the Nation’’s
waters.””131 Nowhere does either of these pieces of legislation allude to the
plainly expressed meaning and objective of the Commerce Clause, but
rather Congress has substituted its own objectives, as seen in the
legislation’’s expressly stated purpose statements. Not only has Congress
126. United States v. Fisher, 6 U.S. 358, 386 (1805).
127. Id.
128. McCulloch v. Maryland, 17 U.S. 316, 421 (1819) (““Let the end be legitimate, let it
be within the scope of the constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of
the constitution, are constitutional.””).
129. 33 U.S.C. § 1344(g)(1) (2010).
130. 33 U.S.C. § 328.3(a)(3) (2010).
131. 33 U.S.C. § 1251(a) (2006).
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abrogated the objective of the Commerce Clause, but done so with great
inconvenience to itself in legislating such complexity and the courts in
deciphering its application.
C. Arbitrary Line in Geography
The problem is not in where Scalia, Kennedy, or Stevens drew their
lines, but rather on what basis their lines were drawn. The Court’’s response
to the confusion prior to Rapanos was really to draw another arbitrary line.
This time, because the judicial conservatives were able to garner a majority
with Kennedy’’s concurrence, it was just a little farther downstream. The
line drawn by the Court was arbitrary because the federal government has
not been directly limited by geography, which was the basis of the Court’’s
opinion.132 Congress is limited by what it can regulate, and this in turn
limits where it can regulate depending on the nature of the thing being
regulated. Instead of acknowledging that what Congress was seeking to
regulate in this instance was outside of its constitutional limits, the Court
chose to interpret the statute to reflect traditional geographical boundaries.
Besides being contrary to our republican form of government, arbitrary
lines blur the real constraints built into the Constitution. There are those
who see continued environmental harm in an under-inclusive application of
the CWA, and on the other hand, there are those who see continued harm to
development and commerce in an over-inclusive application.133 Instead of
ruling on whether the CWA itself is constitutional, the Court has chosen to
be a mediator and find a middle line. As a result, it will continue to be
lobbied for a better, more accurate, middle line.134 Setting down a clear
ruling on the constitutionality of the regulation at issue in Rapanos, and
even the CWA itself, would force political lobbying to be done for a
constitutional amendment or stronger state legislation.
1. Continued Environmental Regulation Requires Geographic
Boundaries
While the Court never addressed the constitutional problems at issue in
Rapanos directly, there was some acknowledgement that they existed.
132. Rapanos v. United States, 547 U.S. 715, 735 (2006) (Scalia, J., plurality).
133. Compare Brian Elwood, Note, Rapanos v. United States: The Supreme Court’’s
Failed Attempt To Interpret Wetland Regulation Under the Clean Water Act, 56 CATH. U. L.
REV. 1343, 1366 (2007), with Rob Fowler & Gretchen Morgan, The Clean Water
Restoration Act of 2007: Got a Permit for That Puddle?, 10 ABA ENVTL. LITIG. & TOXIC
TORTS COMM. NEWSL. 20 (2008).
134. See Semanko, supra note 98.
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Justice Scalia stated that the Court granted certiorari to decide, among other
things, ““whether the [Clean Water] Act is constitutional.””135 He also stated
later in the opinion that ““the Corps’’ interpretation [of the CWA] stretches
the outer limits of Congress’’s commerce power and raises difficult
questions about the ultimate scope of that power.””136 Despite these
acknowledgements, the Court never took up the issue of the
constitutionality of the regulation or even the CWA itself. Scholarly
reviews of the case have also noted the constitutional problems at issue and
the Court’’s decision in light of the Lopez decision.137
It is possible that the Court is unwilling to address the constitutional
issues because of the legal implications that would result in regard to other
laws and regulations that have been legitimized under the Commerce
Clause. Bringing the CWA into question would also bring into question
laws as old as the Interstate Commerce Act, as broad as the Civil Rights
Act of 1964, and as recent as the current healthcare bills going through
Congress. The expansion of the Commerce Clause has justified more
federal government growth than any other enumerated power in the
Constitution. Questioning the extent of federal regulation in navigable
waterways would begin a swift destruction of the fragile support holding up
the administrative state.138 All federal laws that do not involve the
regulation of commerce among the states for the creation of an uninhibited
market would be in question.
The Court also has made a precedent of avoiding constitutional issues if
the dispute can be resolved without constitutionally reviewing legislation or
interpreting constitutional provisions. In his concurring opinion in
Ashwander v. Tennessee Valley Authority, Justice Brandeis laid out the
seven factors the Court considers when deciding not to take up a
constitutional matter.139 First, the Court looks at whether the case involves a
““friendly, nonadversary, proceeding,”” and is not ““of real, earnest, and vital
135. Rapanos, 547 U.S. at 730 (Scalia, J., plurality).
136. Id. at 738 (Scalia, J., plurality).
137. Paul Boudreaux, A Case for Recognizing Unenumerated Powers of Congress, 9
N.Y.U. J. LEGIS. & PUB. POL’’Y 551, 563 n.60 (2006); Daniel A. Farber, Federalism and
Climate Change: The Role of the States in a Future Federal Regime, 50 ARIZ. L. REV. 879,
912 (2008).
138. Steven K. Balman, Constitutional Irony: Gonzales v. Raich, Federalism and
Congressional Regulation of Intrastate Activities Under the Commerce Clause, 41 TULSA L.
REV. 125, 165 (2005).
139. Ashwander v. Tenn. Valley Authority, 297 U.S. 288, 346-49 (1936) (Brandeis, J.,
concurring).
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controversy.””140 Second, the Court does not ““anticipate a question of
constitutional law in advance [of] deciding.””141 The Court then analyzes,
third, whether a rule would be formulated broader than the facts of the case;
fourth, whether there is some other ground on which to decide the case; and
fifth, whether the statute did not injure the person seeking review.142 Sixth,
the Court determines if the person seeking review availed himself of the
statute’’s benefits, and finally, it examines whether some reading of the
statute would allow for the question to be avoided.143
While the Court does well to avoid constitutional issues whenever
possible, Rapanos is one case in which the constitutional concerns should
have outweighed any priority to avoid judicial review. One may be able to
argue that the issues in Rapanos fail three of the seven factors, but it is
more likely that all seven factors should have told the court to review the
statute’’s constitutionality. With two separate cases and four different
wetlands at issue, one could hardly say the matter was not a real and vital
enough controversy to satisfy the first factor in Ashwander.144 The ruling in
SWANCC that brought other CWA applications into question only further
substantiates this argument.145 As far as the second factor, it is likely the
Court anticipated the constitutional matters if Justice Scalia acknowledges
them in his opinion.146 The wetland’’s distance from navigable waterways in
Rapanos makes the facts narrow enough to meet the third factor. As
discussed earlier, the facts of Rapanos made the case a prime scenario in
which to establish the constitutional extent of federal jurisdiction over
navigable and non-navigable waterways.147 In regard to the fourth factor,
the way the case was decided shows that the Court was able to find other
grounds upon which to decide the case. However, the confusion from the
plurality decision seems to suggest that facing the constitutional issues
directly may have been better.148 This also suggests that the seventh factor
would have been met as well, and the constitutional questions could not
have been avoided. Rapanos affected both individual property rights and
the state of Michigan’’s right to regulate its own health and safety. In terms
140.
141.
142.
143.
144.
145.
146.
147.
148.
Id. at 346.
Id.
Id. at 347.
Id. at 348.
Rapanos v. United States, 547 U.S. 715, 729 (2006) (Scalia, J., plurality).
Bueschen, supra note 87.
Rapanos, 547 U.S. at 730 (Scalia, J., plurality).
See supra Part III.
See Fish, supra note 105, at 561.
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of the fifth factor, the parties involved were certainly harmed and likely
realized little to no benefit in the CWA, just like many other landowners
and business operators.
The Court will be forced to create geographic boundaries if it is
unwilling to find constitutional problems in federal legislation intended to
regulate the environmental health of the nation’’s waterways. As stated
earlier, water moves in a continuous ecological cycle.149 Unless the federal
government is allowed to regulate every aspect of this cycle, there needs to
be some determination of boundaries for when in the cycle the federal
government can and cannot regulate water. In other words, all water
eventually leads to a navigable river or the navigable ocean, including bath
water.150 If federal regulation is not limited by the Constitution, a
geographic boundary is needed to prevent federal regulation of all water,
even bath water. At the moment, the federal government remains split
between the various holdings in Rapanos, but there have also been cases
that suggest the federal government could go as far as regulating
groundwater.151
2. Difficulty in Drawing Any Authoritative Geographic Line
Any avid outdoors person knows that there is no such thing as a straight
line in nature. Close observation and science has also shown that stark
distinctions between geographic areas is also a fallacy, especially when
distinctions are trying to be made broad enough to include numerous
areas.152 Supreme Court Justice Hugo Black stated it best in a case dealing
with a boundary dispute between Louisiana and the United States when he
wrote the following:
Settling and identifying boundaries on land is a surveyor’’s job;
he must go to the land with his instruments and mark it off.
Identifying [a water] boundary . . . is a much more complex job;
it takes much time by surveyors, cartographers, photographers,
and oceanographers, a knowledge of angles, tides, rolling waters,
higher mathematics, etc. Shorelines are constantly changing and
thus . . . even this painstaking work cannot provide a means of
marking the boundary for all time. I cannot accept the argument
149. JOHNSON, supra note 4, at 441 fig.5.
150. Id.
151. Sporhase v. Nebraska, 458 U.S. 941 (1982).
152. United States v. Riverside Bayview Homes, 474 U.S. 121, 132 (1985); FLUSHMAN,
supra note 7, at 69 (discussing how geography is mutable and always in flux).
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that Congress never intended to impose on this Court such an
unjudicial job.153
Unlike property or jurisdictional related issues, drawing a geographic
line in federal regulation is much more difficult; one might even argue that
it is impossible. The lines drawn between property and jurisdictions are
artificially based and often built upon man-made grids and landmarks. In
the regulatory boundary drawn in Rapanos, the line is based completely on
the natural contours and construction of the land. A broad bright-line legal
test on the federal level has the potential for being grossly unjust for being
over-inclusive
or
under-inclusive——over-inclusive
by
including
environments that do not need protection, and under-inclusive by
preventing the state from legislating protection where it is needed. While
determining geographic limitations of a regulation is a little less specific
than determining boundary lines of property, the difficulty remains because
the intention of the Court is to determine what areas of land are within the
regulatory scheme and which are without, and to do so on a national level.
D. Adverse Legal Effects of Arbitrary Regulatory Lines
The negative legal consequences of arbitrary rules can be numerous.
This is especially the case with navigable waterways where an arbitrary
ruling can affect a very broad array of waterways and geography, as shown
above in Part III.C. An arbitrary rule in federal water law can also have a
substantial effect on the foundational and structural aspects of United States
law, especially in the areas of federalism and individual rights.
1. Force Rather Than Right Supports Environmental Law
The most negative consequence of arbitrary rules is that they are not an
accurate expression of what the law truly is.154 ““Law, in its most general
and comprehensive sense, signifies a rule of action . . . . And it is that rule
of action, which is prescribed by some superior, and which the inferior is
bound to obey.””155 In this instance, the people of the United States have
prescribed by their Constitution what the law is, and the justices, as inferior
153. Louisiana Boundary Case, 394 U.S. 11, 85 (1968) (Black, J., dissenting).
154. BLACK’’S LAW DICTIONARY 112 (8th ed. 2004) (““arbitrary, adj. 1. Depending on
individual discretion; specif., determined by a judge rather than by fixed rules, procedures,
or law. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason
or fact.””).
155. 2 WILLIAM BLACKSTONE, COMMENTARIES *38; see also LOCKE, supra note 95.
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to that people, are bound by its limits.156 Enforcing a rule outside of the law
constitutes mere force, and force remains only as long as those in power
agree with the rule.
Protecting our natural resources requires the support of law, whether by
establishing a large administrative bureaucracy or simply enforcing
property rights. An arbitrary ruling subverts the law and, in turn, the
protection our natural resources require. By making a broad, arbitrary
decision for the whole country along the lines of geography, the Court is
bound to be either over-inclusive or under-inclusive of the resources that
need protection. An arbitrary ruling also leaves open the possibility that a
later court will simply change the rule, essentially moving the line.
Meanwhile, while natural resources are being harmed or individuals’’
property rights are being infringed, a more accurate and legitimate rule of
law could be established on the local level.
2. Infringement on States’’ Rights
The founding fathers knew that one of the best ways to protect liberty
was to localize government and power.157 The need for federalism rings no
more true than in the area of environmental law, where differing
geographies require differing laws of protection. For example, the low
farmer’’s field in Southern Wisconsin does not need the same protection as
the prairie potholes in Central North Dakota. This example is only
exaggerated more when one considers all the geographic diversity between
the Florida everglades and the Alaskan rivers. However, the area of
environmental law is often where federalism is attacked the most.158 While
the CWA pays ““lip-service to federalism and states’’ rights,””159 it can hardly
be consider a piece of legislation that preserves such principles in actuality.
First and foremost, the CWA directly states that its objectives are those of
health and welfare; traditional police powers are reserved to the states.160
156. The author in no way intends to falsely contextualize Blackstone’’s statements,
which quite blatantly relate to God establishing the law of nature to which ““inferior”” man is
subject. However, understanding this principle as the very essence of what law is displays
how negative arbitrary rulings are.
157. FORREST MCDONALD, STATES’’ RIGHTS AND THE UNION: IMPERIUM IN IMPERIO, 17761876, at 46 (2000) (quoting Jefferson’’s First Inaugral Address: ““the support of the State
governments in all their rights, as the most competent administrations for our domestic
concerns and the surest bulwarks against antirepublican tendencies””).
158. Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating
State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1196 (1977).
159. 2 WILLIAM H. ROGERS, RODGERS’’ ENVIRONMENTAL LAW § 4.2 (2009).
160. 33 U.S.C. § 1251(a) (2006).
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Second, under the CWA, the EPA must establish a national standard for all
of the states to adhere.161 It is only after they have shown they can uphold
this standard that local officials are allowed to enforce the standard on
private citizens.162 To enforce the federal standards, the CWA grants the
EPA power to police and prosecute the states and their citizens.163
3. Impact on Individual Property Rights and the Takings Clause
The lack of acknowledgement for constitutional abdication in this area of
law has also led to infringement on the rights of individuals, particularly
property rights.164 This is largely because federal regulation of the
environment has put a form of land use regulation on a national scale. Land
use law, left traditionally to local governments, is now subject to broad,
nation-wide rules and standards. Arbitrary judgments, such as those drawn
in Rapanos, leave no room for the local discretion necessary to ensure the
proper balance between the protection of the environment and the liberty of
those affected by the regulation, or lack thereof. Land use regulation is
often for the benefit of those who are affected by the use of the land, in
particular those who live within the land’’s locality.165 An arbitrary decision
causes over-breadth in what waterways or land areas are regulated. This
over-breadth creates unnecessary infringement on the rights of property
owners.166
161. 33 U.S.C. § 1254(a) (2006).
162. 33 U.S.C. § 1256(e) (2006).
163. 33 U.S.C. § 1319(a)(2) (2006).
164. U.S. CONST. amend. X (““The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to
the people.”” (emphasis added)).
165. The argument that impacts on the environment of navigable waterways affect
everyone is not sound because the nationwide aspect of the issue does not make it a federal
concern. For example, car accidents happen nationally, but traffic safety is still a local
government matter. In addition, the Court stipulated in Rapanos that the impact of the
wetland fill did not even leave Michigan. See Rapanos v. United States, 547 U.S. 715, 723
(2006) (Scalia, J., plurality).
166. An arbitrary decision also affects the application and use of the Takings Clause of
the Constitution. There is little debate that originally the Takings Clause of the Constitution
was understood to apply strictly to a full removal of the bundle. See William M. Treanor,
The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L.
REV. 782, 782 (1995). However, at the time of its drafting, there was much less land use
regulation than there is today. Unfortunately, the rise in land regulation and the Court’’s
ruling in Pennsylvania Coal have made the application of the Takings Clause a very difficult
and messy area of the law. Id. By allowing the national land use regulation of the CWA to
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IV. ACKNOWLEDGE THE INTENT AND SUBJECT OF COMMERCE CLAUSE
The simple answer to how the constitutional issues and arbitrary lines in
Rapanos can be resolved is for the Court to address the constitutional
constraints that bind Congress rather than continue to dance around them.
Addressing these constraints in Rapanos would have made the decision
much simpler. In fact, the plurality opinion acknowledged that the
““pollution”” at issue would never even enter a navigable waterway.167 After
acknowledging this fact, the only conclusion the Court had left to make was
that without any obstructing or inhibiting effect on the free flow of
interstate commerce in navigable waterways, the federal government lacked
the constitutional power to regulate it. In coming to this conclusion, the
Court would be making its geographic distinction according to where the
Constitution draws the ““line in the sand.”” Rather than being concerned
about the hydrological connection between different geographic areas and
differentiating between landscapes, the Court would have centered the
federal government’’s limitation on where the founding fathers placed it——
regulating commerce.
A. Benefits of Addressing Constitutional Issues
If addressed correctly, the constitutional problems at issue in Rapanos
would provide a legitimate and authoritative line in the proverbial sand. It
would be legitimate and authoritative because it would be where the people
of the United States have drawn the line. The Commerce Clause enumerates
to the federal government the power ““[t]o regulate Commerce with foreign
Nations, and among the several States, and with the Indian tribes.””168 As
stated earlier, the purpose of this clause was to create a common market
among the states.169 In the words of James Madison:
A very material object of [the Commerce Clause] power is the
relief of the States which import and export through other States
. . . . The experience of the American States during the
confederation abundantly establishes that such arrangements
withstand any constitutional criticism, the Court has essentially brought this grey area of the
law over any land affected by water that will enter a navigable waterway.
167. Rapanos v. United States, 547 U.S. 715, 723 (2006) (Scalia, J., plurality).
168. U.S. CONST. art. I, § 8, cl. 3.
169. See supra Part II.A.
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could be, and would be made under the stimulating influence of
local interests, and the desire of undue gain.170
From an understanding of the subject and purpose of the Commerce Clause,
drawing a line becomes simply a matter of inference.
A plainly adapted CWA may look something like the RHA of 1899. This
is because a plain reading of the Commerce Clause and an understanding of
its intent require pollution not just to affect navigable waterways, but also
to inhibit commerce. In other words, Congress has only been given the
power to regulate pollution, discharge, or backfill that is found to inhibit the
pursuit of commerce on navigable waterways. The objective of Congress
should be the regulation of commerce among the states so as to prevent
division and local protection in a common market. Until given the power to
seek the objective of the CWA, Congress can at most prevent pollution as a
coincidental side effect of preventing obstructions and dangers on the
navigable waterways.
A proper application of the Commerce Clause leaves states sovereign in
the police powers they have reserved to themselves, such as maintaining
health and safety in any and all of their waterways and wetlands.171 A
proper application also protects the right of property owners by not
allowing the federal government to make broad national land use
decisions.172 If the members of Congress desire the power to regulate the
health of the nation’’s waterways, the Constitution requires that they first
propose a Constitutional Amendment to the people.173
B. Other Legal Avenues to Protect the Environment
A large reason for the continued support of environmental laws with
questionable legality is fear on the part of their supporters that if overruled
the environment would go unprotected.174 In conjunction with this fear is
the obvious reality that many of the threats to the environment are
nationwide, and if left to the individual states, a problem of the ““tragedy of
170. STORY, supra note 3, at 11 (quoting THE FEDERALIST NO. 42 (James Madison)).
171. Gibbons v. Ogden, 22 U.S. 1, 203 (1824).
172. Id. at 208-09 (discussing the ability of states and individuals to construct the
buildings they want to build on their property).
173. U.S. CONST. art. V.
174. CRAIG, supra note 13, at 4. Fear is a motivator behind many justifications for state,
or positive law, involvement in an area of human activity.
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the commons”” arises.175 While it is not the focus of this Note, it is important
to briefly mention some of the legitimate alternatives that are all too often
quickly dismissed by environmental legal scholars. The following areas of
the law would fill any void created by a Supreme Court decision that
properly considered the constitutional problems at issue in environmental
regulation.
1. Free-Market Solutions
Protecting the environment does not necessarily require a governmental
actor or regulatory scheme. Some scholars dismiss the fact that businesses
and individual landowners many times have just as much a vested interest
in protecting natural resources as anyone else.176 This is particularly the
case when those natural resources have recognized property value. ““Free
market environmentalism stresses the importance of well-specified property
rights as the proper mechanism to provide the incentive for entrepreneurs
acting on specific time and space information.””177 An alternative to federal
administrative oversight would be the recognition of property rights in the
nation’’s waterways. Whether individuals, conservation organizations, or
local governments, owners would recognize property value in the purity
and protection of water and wetlands. The Commerce Clause would still
grant federal power over navigation, allowing for public travel over the
waterways.178 However, simply having better-defined property rights in
water quantity and quality would give owners of those rights greater
interest in protecting those water properties against upstream abuses.179
Diversifying the definition of property rights in various natural resources
creates an atmosphere in which the value of those resources is more widely
recognized, particularly by their owner. It also allows for greater fluidity in
transferring those resources to their best possible use.180 By reforming
aspects of property law, endangered natural resources are valued and
175. Susan Rose-Ackerman, Environmental Policy and Federal Structure: A Comparison
of the United States and Germany, 47 VAND. L. REV. 1587, 1592 (““The national government
must establish a framework for local decision-making processes and act when the benefits of
standardized solutions outweigh the advantages of local control.””).
176. Michael C. Blumm, The Fallacies of Free Market Environmentalism, 15 HARV. J.L.
& PUB. POL’’Y 371, 387-88 (1992).
177. Terry L. Anderson & Donald R. Leal, Free Market Versus Political
Environmentalism, 15 HARV. J.L. & PUB. POL’’Y 297, 303 (1992).
178. Much like federal control over a ““postal road”” that runs across or adjacent to private
property.
179. See Anderson, supra note 177, at 303.
180. Id.
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incorporated into the economic market. In one study on the water quality of
various rivers around the globe, ““[a] measure of property-rights protection
was also included in the estimating procedure, [and] it showed significant
improvements in water quality for countries with greater property-rights
certainty.””181 A vast amount of scholarship has also been done on the
application of free market environmentalism to continuing problems that
current government regulation has failed to address, such as the tragedy of
the commons in commercial ocean fishing.182 The application of free
market principles to navigable waterways would provide a viable option in
the absence of federal regulation.
2. Federal Common Law
While not always intended for the greater protection of the environment,
the common law did provide significantly for the protection of one’’s own
environment through causes of action such as nuisance and trespass.183 Too
often the common law has been dismissed as inferior to administrative
regulation.184 Even if it cannot provide perfect solutions, reviving its use
may prove to be a welcome substitute for the large administrative state.185
Lest we forget, the common law has sufficiently protected most natural
resources far longer than any statutory or regulatory scheme put in place by
the federal government, including the natural resources of waterways.186
Under the common law, ““the riparian owner has the right to have water
flowing past his land in its natural state of purity.””187 This is a very high
181. Roger E. Meiners et al., Burning Rivers, Common Law, and Institutional Choice for
Water Quality, in THE COMMON LAW AND THE ENVIRONMENT: RETHINKING THE STATUTORY
BASIS FOR MODERN ENVIRONMENTAL LAW 54, 56 (Roger E. Meiners & Andrew P. Morriss
eds., 2000).
182. Katrina M. Wyman, The Property Rights Challenge in Marine Fisheries, 50 ARIZ.
L. REV. 511 (2008).
183. Denise E. Antolini and Clifford L. Rechtschaffen, Common Law Remedies: A
Refresher, in CREATIVE COMMON LAW STRATEGIES FOR PROTECTING THE ENVIRONMENT 12,
18-30 (Clifford Rechtschaffen & Denise Antolini eds., 2007).
184. David Schoenbrod, Protecting the Environment in the Spirit of the Common Law, in
THE COMMON LAW AND THE ENVIRONMENT: RETHINKING THE STATUTORY BASIS FOR
MODERN ENVIRONMENTAL LAW 3 (Roger E. Meiners & Andrew P. Morriss eds., 2000).
185. Id. at 4-19.
186. Roger Bate, Protecting English and Welsh Rivers: The Role of the Anglers’’
Conservation Association, in THE COMMON LAW AND THE ENVIRONMENT: RETHINKING THE
STATUTORY BASIS FOR MODERN ENVIRONMENTAL LAW 87 (Roger E. Meiners & Andrew P.
Morriss eds., 2000).
187. Id.
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standard, especially in light of modern science where natural purity can be
determined down to the atomic level. Courts recognizing this high standard
would allow any downstream landowners to keep upstream landowners
such as Rapanos in check. Downstream landowners could be anyone from a
private individual, conservation association, or local government. The point
is not that the common law is a completely waterproof solution, only that it
is an important alternative that is being overlooked and dismissed too
quickly.
3. State Law or Constitutional Amendment
States are more than able to protect many of the natural resources the
CWA seeks to protect. In fact, some states have much broader definitions of
navigable waterways.188 While this Note will not address the legitimacy of
state laws regulating the environment, many states have strong
environmental protection policies written into their laws.189 These laws and
policies would quickly and easily replace any federal withdrawal from this
area. In fact, there is a strong argument that all the federal regulation has in
fact stifled state action.190 The repercussions of the Supreme Court’’s
decision in SWANCC are one example of how state law can fill any absence
of federal environmental regulation. Following the decision that federal
regulation did not extend to isolated ponds, nineteen states passed
legislation that allowed state governments to regulate such waterways.191
A common objection to returning environmental regulation to state
governments is the potential for national environmental problems to be
overlooked.192 However, this is an objection that can be quickly answered
with two suggested solutions: the common law of public nuisance and
interstate compacts and treaties. Under public nuisance law, downstream
states could hold upstream states in check from allowing water in an
unnatural state to enter its borders. This would require upstream states to
188. See MINN. STAT. § 103G.005(15) (2003); WIS. ADMIN. CODE NR § 320.03(11)
(2010) (““In Wisconsin, a navigable body of water is capable of floating the lightest boat or
skiff used for recreation or any other purpose on a regularly recurring basis.””).
189. Robert V. Percival, Environmental Federalism: Historical Roots and Contemporary
Models, 54 MD. L. REV. 1141 (1995).
190. Jonathan H. Adler, When Is Two a Crowd? The Impact of Federal Action on State
Environmental Regulation, 31 HARV. ENVTL. L. REV. 67 (2007).
191. Id. at 113 n.187.
192. Indur M. Goklany, Empirical Evidence Regarding the Role of Nationalization in
Improving U.S. Air Quality, in THE COMMON LAW AND THE ENVIRONMENT: RETHINKING THE
STATUTORY BASIS FOR MODERN ENVIRONMENTAL LAW 27 (Roger E. Meiners & Andrew P.
Morriss eds., 2000).
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maintain environmental standards as high as downstream states, but no
higher than necessary to avoid litigation. Prior to the federal regulatory
scheme in place today, these common law venues were used as some states
became cognizant of the environmental harms crossing their borders.193
However, development in this area of common law has been slow since the
introduction of federal regulation.194 Interstate compacts and treaties are
already in use on some level, but they could be expanded in the absence of
federal regulation.195 The Constitution provides for federal jurisdiction over
any disputes between states, thus allowing the federal government to be the
arbitrator of such treaties and compacts.196
If the American people still do not find these alternatives to federal
regulation satisfactory, there is always the option of amending the federal
Constitution. Ratification of an amendment to the Constitution would
obviously be a difficult political avenue, but if realized, it could
undoubtedly provide solid legal support for current federal regulation. An
amendment would definitely preclude infringement of state rights and,
depending on its precise wording, would likely prevent claims of
infringement against individual rights. Support for such an amendment
might not be as sparse as critics are quick to claim. When the Supreme
Court took up Rapanos, ““thirty-three states filed amicus briefs which
favored ceding their traditional jurisdiction and responsibility to the Army
Corps of Engineers.””197 Thirty-three is only five short of the amount of
states needed for ratification of a constitutional amendment.198 The public
awareness of national action against environmental harm is also much
higher today than in the 1960s when the movement was first making
political inroads.
V. CONCLUSION
Some environmental law scholars freely admit ““environmental
constitutional jurisprudence may have progressed to the point where the
very structure of the Constitution impedes necessary solutions to
193. E.g., Illinois v. City of Milwaukee, 406 U.S. 91 (1972); New York v. New Jersey,
256 U.S. 296 (1921); Missouri v. Illinois, 200 U.S. 496 (1906).
194. See Antolini, supra note 183, at 12.
195. E.g., An Act Granting the Consent of Congress to a Great Lakes Basin Compact,
Pub. L. No. 90-419, 82 Stat. 414 (1968).
196. See U.S. CONST. art. III, § 2.
197. Ann Graham, Searching for Chevron in Muddy Watters: The Roberts Court and
Judicial Review of Agency Regulation, 60 ADMIN. L. REV. 229, 244 (2008).
198. See U.S. CONST. art. V.
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increasingly difficult environmental issues . . . .””199 In Rapanos, the Court
chose to continue ignoring the constitutional constraints. One constitutional
lawyer has gone as far as stating that ““it would be more intellectually
honest for the federal courts to recognize formally that Congress has the
power to regulate matters outside of interstate commerce or other specified
powers. Because it would be more honest, a doctrine of unenumerated [sic]
powers might form a more stable basis for social legislation in an era of
growing skepticism of a limitless commerce power.””200 While tyranny may
produce stability, it is not the form of government to which Americans
should be willing to succumb. However, it is the form the country would
have if Congress were given limitless power.201 The objective in addressing
the constitutional issues in Rapanos should be both stability and liberty.
The nation’’s waterways are a valuable resource and must be cared for in
order to preserve their beauty, well-being, and even existence. The laws in
place to do this must be stable and established enough to last as long as the
waterways themselves. Yet currently, many of the laws protecting these
waterways are an exercise of illegitimate federal legislation beyond the
enumerated powers of the Constitution. While the Court does well to
understand that this legislation needs limiting, its limit in Rapanos is only
another exercise of arbitrary and illegitimate judicial power.
The federal government is limited in what it can do, not in where it can
do it. The Constitution provides a stark and authoritative limit, or ““line in
the sand,”” for the extent of federal power over the nation’’s waterways.
Rather than limit the federal government in which geographic areas it can
regulate, the Constitution limits the federal government to regulating
commerce, and, as the Court has found, this entails navigation. The federal
government has not been given the power to regulate the environmental
health of any geographic areas, regardless of their use in navigation.
The Constitution also provides liberty by restraining the powers in place.
In order to preserve that liberty, the legal methodologies for granting power
must be acknowledged and used. Some members of Congress have
responded to Rapanos with legislative bills that are intended to expand the
definition of ““navigable waters”” in the CWA.202 The new definition would
essentially reinstate the administrative definitions overruled by the Court in
199. CRAIG, supra note 13, at 4.
200. Paul Boudreaux, A Case for Recognizing Unenumerated Powers of Congress, 9
N.Y.U. J. LEGIS. & PUB. POL’’Y 551, 554 (2006).
201. See LOCKE, supra note 95, at 188.
202. S. 787, 111th Cong. (2009); H.R. 1310, 111th Cong. (2009).
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SWANCC and Rapanos.203 By ignoring the constitutional problems in these
cases, the Court has either authorized or deceitfully led Congress to the
conclusion that it has a power it has never been given. ““Wherever law ends,
tyranny begins . . . .””204 Thus, the first step in preventing tyranny and
protecting liberty is in acknowledging where the law ends. For the federal
regulation of navigable and non-navigable waterways, it is the plainly
adapted objective of the Commerce Clause.
203. S.B. 787, 111th Cong. § 4 (2009).
The term ‘‘waters of the United States’’ means all waters subject to the ebb and
flow of the tide, the territorial seas, and all interstate and intrastate waters and
their tributaries, including lakes, rivers, streams (including intermittent
streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet
meadows, playa lakes, natural ponds, and all impoundments of the foregoing,
to the fullest extent that these waters, or activities affecting these waters, are
subject to the legislative power of Congress under the Constitution.
Id.
204. LOCKE, supra note 95, at 189.